To start off, it is important and required to explain the details of adjudication and rulemaking and what they entail. Adjudication entails a state agency receiving judicial powers to make a ruling or decree on a specific issue. Some of the characteristics of the adjudication process are: agencies can pick their fights with adjudication on an individual case-by-case basis, exercise degree of compassion towards an individual circumstance, adjudication allows for entities to be addressed in a specific manner, hold the entities responsible for past behavior. (Class Notes) Adjudication does benefit from being more open to unexpected problems than rulemaking does. Some of rulemakings characteristics are as follows: rulemaking is generally more universal, …show more content…
For example, in a Supreme Court case in 1941 named SEC v. Chenery Corp, Chenery Corporation was being accused for manipulating stock bonds.(Class Lecture)) Cherney did not actually violate the provisions set in place that were aimed at reducing or eradicating fraud. The Securities and Exchange Commision argued on the basis of the spirit of the law was was aimed at reducing fraud and that is why they held the Chenery Corporation responsible. The SEC also argued on the foundations of retroactivity. (Class Lecture). The court ruled against the agency. This Supreme Court ruling provided information regarding the legalities of establishing rules through adjudication because the standards never actually existed through the rulemaking process in the first place. The accusations brought forth by the SEC against the Chenery Corp were based off of discretionary principles that exist when an agency uses the adjudication process for a ruling. That brings me to my next point, discretionary problems. The Supreme Court rules on another case named NLRB v Bell Aerospace (1974. The issue in this case came about when the National Labor Relations Board was asked to make an exception for their unionization policy pertaining to the managerial duties of their employees and said that they were not able to unionize under NLRB’s policies.(Administrative Law Book) The NLRB decided that they were able to unionize, but that went against the past adjudications decisions of the NLRB. That raised the issue of rulemaking or adjudication for setting standards and policies again. This time, Bell Aerospace sued the NLRB and asked for them to be forced to only set rules by using the rulemaking process. The Supreme Court ruled that the agencies can decide to set rules by using the rulemaking, or the adjudication process and it is their choice in which one they choose, but they cautioned against too much usage of
Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose decisions shape the lives of "We the people" for a long time to come.
The conceptual foundation of the U.S. Constitution is that there is a checks and balance system within the government that was developed to ultimately protect the rights of the people. In Pembaur v. City of Cincinnati (1986), there is an ongoing string of rulings from multiple appeals, for multiple rulings, that derived from a single case. What is interesting to note is that the original charge in the case is not the same charge for the most recent ruling. The actual case that is being heard in the Supreme Court is for civil damages. Although the law is being followed in allowing for the checks and balances to take place, the history of this case took place over a period of nine years from 1977-1986. One could question the efficiency of public administration in delivering a timely decision. As each case reached a ruling, another appeal needed to be submitted for the new justification of the ruling. Many different actions were submitted for review based on the different findings for each new ruling. A mentioned previously, this process was completed over a nine year period, and in accordance
d by agreement in the court of appeals. By applying principles to the conflicting laws, the judge is able to make the greatest social advancements by both punishing for actions causing harm and also giving hint that his honest intentions did not go unnoticed and such intentions should be upheld in society. Looking at the case R.V.Machekequonabe, it is a prime example of conflicting rules. It is always difficult to decide which rule should be followed and which should be rejected, especially in cases where cultural upbringing plays such a major role.
According to Cornelius Kerwin, "Rulemaking is the single most important function performed by agencies of government Rulemaking refines, and in some instances defines, the mission of every government agency. In so doing it provides direction and content from budgeting, program implementation, procurement, personnel management, dispute resolution, and other important government activities" (Preface XI). This is the foundation for the book, Rulemaking. The whole text primarily revolves around this statement. Throughout the book Kerwin's central theme is that rulemaking is the single most important function that any government agency has within its possession. Much like other admin law books he discusses how those agencies with their rulemaking powers interpret legislation and proceed forward with making policy.
Examples of this include the Supreme Court’s ruling on National League of Cities v Usery in 1976, where it was disputed whether the national government had the authority to set a minimum wage standard for the states to follow, in this particular case’s ruling, the Supreme Court decided no, the national government did not have the right to do so. Nine years later the Supreme overturned this previous ruling in the case of Garcia v San Antonio Metro Transit
federal courts: A content analysis based on agency theory. PhD diss., The George Washington University.
People have always been concerned about our judicial system making massive decisions in an undemocratic manner and while there are parts of our nation’s history (Jost). There have been decisions that were dreadful for our nation, Dred Scott v. Sandford; but there are decisions that everyone can agree with in retrospect, Brown v. Board of Education. Also, there are decisions that still divide us as a nation, Bush v. Gore and Roe V. Wade. There are a lot of issues that come from our current judicial system; however, I understand that the problems that come from it are not going to come from any quick fix, and we may have to live with some of them. Looking at the history of the judicial branch of the United States Government, I believe it needs to be limited in its judicial review power, but have certain exceptions where necessary in some cases.
Oliver, N. E. (2006). Influences on Judicial Decision Making. In N. E. Oliver, The Public Policy of Crime and Criminal Justice (pp. 371-374). Upper Saddle River, NJ: Prentice Hall.
Judicial activism is loosely defined as decisions or judgements handed down by judges that take a broad interpretation of the constitution. It is a decision that is more of a reflection of how the judge thinks the law should be interpreted rather than how the law has or was intended to be interpreted. There are many examples of judicial activism; examples include the opinions of Sandra Day O'Connor in the Lynch v. Donnelly and the Wallace v. Jaffree trials. Sandra Day argues for the changing of the First Amendment's ban on "establishment" of religion into a ban on "endorsement" of religion. Others include US v. Kinder where our congress passed legislation that would require a minimum sentence for persons caught distributing more than 10 grams of cocaine. Judge Leval used a weighing method suggested by the sentencing commission rather than the method required by congress. The different method used did not trigger the mandatory sentence whereas the congressional method would have.
The American Court System is an important part of American history and one of the many assets that makes America stand out from other countries. It thrives for justice through its structured and organized court systems. The structures and organizations are widely influenced by both the State and U.S Constitution. The courts have important characters that used their knowledge and roles to aim for equality and justice. These court systems have been influenced since the beginning of the United State of America. Today, these systems and law continue to change and adapt in order to keep and protect the peoples’ rights.
Harris, BV, 2002, ‘Final appellate courts overruling their own “wrong” precedents: the ongoing search for principle’, Quarterly Review, vol. 118, no. 408, pp. 412.
INTRODUCTION: Parliament, the supreme law-making body, has unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus, the real role of a judge in any legal system continues to be a phenomenon questioned by many.
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions to disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is more of an official adjudicative and adversary technique initially a confidential litigation process which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11). "The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties. " We can say that many issues arise with terms.
Since decisions are predicated on previous rulings, it is much easier to pursue this procedure. There is an expectation on the part of people, as there is conformity in terms of the outcome to expect. The procedure is far more flexible and much more realistic as there no set, long drawn rules but real scenarios that have already been dealt with. This is a clear advantage over the codified system where the judges have follow and apply the rules of the code exactly.
In particular, Gallas-himself a former court administrator-thinks that what judges and administrators do within courts is insufficient to explain case processing differences; as he states it, the "local legal culture pervades the practice of law and the processing of c...